So Christian, et al v. Supreme Court LA

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REVISED - June 14, 2001 1
IN THE UNITED STATES COURT OF APPEALS 2
FOR THE FIFTH CIRCUIT 3
4
No. 99-30895 5
6
7
SOUTHERN CHRISTIAN LEADERSHIP CONFERENCE, 8
LOUISIANA CHAPTER; ST. JAMES CITIZENS 9
FOR JOBS & THE ENVIRONMENT; CALCASIEU LEAGUE 10
FOR ENVIRONMENTAL ACTION NOW; HOLY CROSS 11
NEIGHBORHOOD ASSOCIATION; FISHERMEN & 12
CONCERNED CITIZENS’ ASSOCIATION OF 13
PLAQUEMINES PARISH; ST. THOMAS RESIDENTS 14
COUNCIL; LOUISIANA ENVIRONMENTAL ACTION 15
NETWORK; LOUISIANA ASSOCIATION OF COMMUNITY 16
ORGANIZATIONS FOR REFORM NOW; NORTH BATON 17
ROUGE ENVIRONMENTAL ASSOCIATION; LOUISIANA 18
COMMUNITIES UNITED; ROBERT KUEHN; CHRISTOPHER 19
GOBERT; ELIZABETH E. TEEL; JANE JOHNSON; 20
WILLIAM P. QUIGLEY; TULANE ENVIRONMENTAL 21
LAW SOCIETY; TULANE UNIVERSITY GRADUATE 22
AND PROFESSIONAL STUDENT ASSOCIATION; 23
INGA HAAGENSON CAUSEY; CAROLYN DELIZIA; 24
DANA HANAMAN, 25
26
Plaintiffs-Appellants, 27
28
versus 29
30
SUPREME COURT OF THE STATE OF LOUISIANA, 31
32
Defendant-Appellee. 33
34
35
36
Appeal from the United States District Court for the 37
for the Eastern District of Louisiana 38
39
May 29, 2001 40

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* Circuit Judge of the Ninth Circuit, sitting by designation.
1 The plaintiffs in this case are composed of four general groups:
law professors, law students, community organizations, and student
organizations. For simplicity we will refer to all plaintiffs
collectively as “Plaintiffs.”
2 Although it is well established that the Eleventh Amendment
protects state supreme courts, see Landers Seed Co., Inc. v. Champaign
National Bank, 15 F.3d 729 (7th Cir. 1994), the only defendant in this
case is “the Supreme Court of the State of Louisiana.” But, the LSC has
refrained from advancing any argument that the Eleventh Amendment bars
suit at this stage of the case, even after inquiry at oral argument.
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Before GOODWIN,* GARWOOD and JONES, Circuit Judges. 41
42
GARWOOD, Circuit Judge: 43
On April 16, 1999, the Plaintiffs1 filed a complaint under 42 44
U.S.C. § 1983 in the United States District Court for the Eastern 45
District of Louisiana, alleging that Louisiana Supreme Court Rule 46
XX impermissibly suppresses Plaintiffs’ freedoms of speech and 47
association as protected under the First and Fourteenth Amendments. 48
The complaint seeks injunctive and declaratory relief, costs and 49
attorneys’ fees. Defendant, the Louisiana Supreme Court (LSC),2
50
filed two motions, asking the district court to dismiss the action 51
under Fed. R. Civ. P. 12(b)(6) for failure to state a claim, and, 52
in the alternative, to dismiss for lack of standing. Oral argument 53
was held on July 21, 1999, and on July 27, 1999, the district court 54
granted the LSC’s motions. This appeal by Plaintiffs followed. We 55
affirm. 56
Facts and Proceedings Below 57

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In 1971, the LSC adopted the precursor to what is now Rule XX, 58
which for the first time allowed the limited practice of law by 59
students as part of supervised clinical education programs in 60
Louisiana law schools. The rule allowed eligible law students in 61
certain circumstances to appear in court or before administrative 62
tribunals in a representative capacity on behalf of the state, its 63
subdivisions, or any indigent person. In 1988, the LSC amended 64
Rule XX to clarify that the rule also allowed students to represent 65
indigent community organizations. See Louisiana Supreme Court Rule 66
XX (1988). It is the LSC's most recent set of amendments to Rule 67
XX that prompted the current suit. The rule as it exists now, and 68
as it has always existed, operates only to set forth the limited 69
circumstances under which unlicensed law students may engage in the 70
practice of law in Louisiana; it has no other reach. 71
Over the years, several Louisiana law school clinics, 72
including the Tulane Environmental Law Clinic (TELC), have supplied 73
legal advice and representation to numerous individuals and various 74
community organizations. In 1996, TELC agreed to represent St. 75
James Citizens for Jobs and the Environment (St. James Citizens), 76
a group of approximately one hundred low-income and working-class 77
residents of St. James Parish. St. James Citizens was formed in 78
response to a proposal by Shintech, a chemical manufacturer, to 79
build a chemical plant in Convent, a small town in St. James 80
Parish. The group was dedicated to resisting the construction of 81

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3 For the purposes of a motion to dismiss for failure to state
a claim, we assume that all of the allegations in the complaint are
true. Brown v. Nationsbank Corp., 188 F.3d 579, 585-86 (5th Cir.
1999).
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the Shintech plant in their community and to raising public 82
awareness of community environmental and health concerns related to 83
the proposed plant. TELC represented St. James Citizens in a 84
variety of ways: at hearings before the Louisiana Department of 85
Environmental Quality, in state court, and by filing objections to 86
the proposed plant with the EPA. Eventually the resistence of the 87
local community to the new plant drove Shintech to reject Convent 88
as its site, and the plant was located elsewhere in Louisiana. 89
According to the Plaintiffs’ complaint,3 TELC’s representation 90
of St. James Citizens induced significant criticism of the clinic 91
from political and business leaders in Louisiana. The complaint 92
alleges that various Louisiana business and political leaders, 93
including Governor Foster, tried to convince Tulane University to 94
curtail the endeavors of TELC. Tulane University proved 95
unresponsive to this pressure, and so, according to the complaint, 96
the “powerful political and business interests” opposed to the 97
clinic turned their attention to the LSC. The complaint alleges 98
that these political and business interests urged the LSC to 99
prevent TELC and other clinics from continuing to aid community 100
groups in giving voice to environmental and health concerns. The 101
Plaintiffs allege several specific incidents that they claim 102

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document the political pressure exerted on both Tulane and the LSC, 103
including phone calls from Governor Foster to the President of 104
Tulane University, statements of Governor Foster at a meeting of 105
the New Orleans Business Council requesting assistance in 106
curtailing the efforts of TELC, various public criticisms of TELC 107
by Governor Foster, a letter from a chamber of commerce 108
organization urging the LSC to eliminate the TELC because the 109
faculty and students involved were “in direct conflict with 110
business positions,” and letters from various business 111
organizations, including the Business Council, the Louisiana 112
Association of Business and Industry, and The Chamber/Southwest 113
Louisiana, urging the LSC to eliminate TELC. 114
Allegedly in response to the concerns of the Governor and 115
business groups, in the fall of 1997 the LSC launched an official 116
investigation into the activities of TELC and Louisiana’s other law 117
school clinics. The results of this investigation have not been 118
made public, but the Plaintiffs allege in their complaint that two 119
Justices of the LSC have disclosed that the investigation did not 120
reveal any inappropriate or unethical behavior by any person 121
associated with any Louisiana law school clinic. 122
The LSC did in fact alter its rule concerning student 123
practitioners, and on March 22, 1999, the Court announced the 124
amendments that established the current form of Louisiana Supreme 125
Court Rule XX. The amendments became effective April 15, 1999, and 126

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4 Louisiana Supreme Court Rule XX section 10 now reads:
“...no student practioner shall appear in a
representative capacity pursuant to this rule if
any clinical program supervising lawyer,
staffperson, or student practitioner initiated in-
person contact, or contact by mail, telephone or
other communications medium, with an indigent
person or indigent community organization for the
purpose of representing the contacted person or
organization.”
The Commentary to section 10 reads, in relevant part,
“...in furtherance of the Court's policy against
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by their terms “shall not impact or apply to any cases, and/or the 127
representation of any clients, in which the representation 128
commenced prior to the effective date of the amendments.” The 129
amendments to Rule XX altered the existing rule in two ways that 130
are relevant to the present case. First, the rule’s indigence 131
requirements were tightened. The new rule allows representation of 132
individuals or families only if their annual income does not exceed 133
200% of the federal poverty guidelines. The rule also now requires 134
that any indigent community organization that wishes to obtain 135
representation from a clinic must certify in writing its inability 136
to pay for legal services, and at least fifty-one percent of the 137
members of the organization must meet the income guidelines. The 138
second major change to Rule XX involves the community outreach 139
efforts of the law school clinics. Under the new rule, clinical 140
student practitioners are prohibited from representing in the role 141
of attorneys an otherwise qualified individual or organization if 142
any person associated with the clinic initiated contact with that 143
individual or organization for purposes of that representation.4
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solicitation of legal clients generally, the
ethical prohibitions against attorney
solicitation, and the Court's view that law
students should not be encouraged to engage in the
solicitation of cases, Section 10, as amended,
prohibits a student practitioner from representing
a client who has been the subject of targeted
solicitation by any law clinic representative.”
(emphasis added).
At oral argument, the Plaintiffs asserted that the current version of
the rule prevents clinics from engaging in any kind of advertising or
outreach. Our interpretation of this rule, however, is that the clinics
must refrain from all targeted solicitation, and that initiating in-
person or any other kind of direct contact with a potential client
prohibits student representation in any matter related to the initiated
contact. While the rule certainly discourages solicitous phone calls,
letters, and in-person offers of legal services, our reading of the rule
would not, for instance, prevent a clinic from merely distributing a
generalized leaflet or flyer indicating that the clinic's legal services
are available for those who meet the income requirements.
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In response to the LSC’s new Rule XX, the Plaintiffs filed this 145
lawsuit on April 16, 1999. 146
In an opinion dated July 27, 1999, the district court 147
dismissed the case for lack of standing and for failure to state a 148
claim. The district court held that the complaint failed to 149
establish the deprivation of any cognizable federal right. The 150
court found that the indigence requirements did not implicate any 151
freedom of association or speech, and that the limitation of 152
clinical services to the poor was rationally related to a 153
legitimate government purpose. Southern Christian Leadership 154
Conference v. Supreme Court, 61 F.Supp.2d 499, 511 (E.D. La. 1999). 155
The court noted that the LSC has broad power to regulate student 156
practice, and held that in this context, the solicitation 157

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restrictions of Rule XX did not violate the First Amendment. The 158
court reasoned: “While free speech rights do exist in this area, 159
they are precariously perched when balanced against the imperatives 160
of protecting the public and monitoring professional ethics. 161
Particularly where student solicitation of potential clients is 162
involved, concern for protecting the public grows considerably.” 163
Id. at 512. Applying rational basis review, the court held that 164
the solicitation restrictions were justified because the 165
restrictions were rationally related to the state’s legitimate 166
interest in protecting the public and monitoring professional 167
ethics. Id. The court also dismissed the Plaintiffs’ claims of 168
viewpoint discrimination, holding that the political motivations 169
of the LSC could not transform an otherwise permissible action into 170
a constitutional violation. Id. at 513. Accordingly, the district 171
court dismissed the Plaintiffs’ claims in their entirety. This 172
appeal followed. 173
Discussion 174
We review de novo a district court’s dismissal for failure to 175
state a claim under Rule 12(b)(6). Leffall v. Dallas Independent 176
School Dist., 28 F.3d 521, 524 (5th Cir. 1994). In considering a 177
motion to dismiss, the complaint should be construed in favor of 178
the plaintiff, and all facts pleaded should be taken as true. 179
Brown v. Nationsbank Corp., 188 F.3d 579, 585-86 (5th Cir. 1999). 180
Motions “to dismiss for failure to state a claim [are] 'viewed with 181

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disfavor, and [are] rarely granted.'” Tanglewood East Homeowners 182
v. Charles-Thomas, Inc., 849 F.2d 1568, 1572 (5th Cir. 1988) 183
(quoting Sosa v. Coleman, 646 F.2d 991, 993 (5th Cir. 1981)). A 184
Rule 12(b)(6) dismissal will not be affirmed “unless it appears 185
beyond doubt that the plaintiff can prove no set of facts in 186
support of his claim which would entitle him to relief.” Conley v. 187
Gibson, 78 S.Ct. 99, 101 (1957). However, “conclusory allegations 188
or legal conclusions masquerading as factual conclusions will not 189
suffice to prevent a motion to dismiss.” Fernandez-Montes v. Allied 190
Pilots Ass’n, 987 F.2d 278, 284 (5th Cir. 1993). In the context of 191
a 12(b)(6) motion in a section 1983 suit, the focus should be 192
“whether the complaint properly sets forth a claim of a deprivation 193
of rights, privileges, or immunities secured by the Constitution or 194
laws of the United States caused by persons acting under color of 195
state law.” Fontana v. Barham, 707 F.2d 221, 225 (5th Cir. 1983). 196
If there is no deprivation of any protected right the claim is 197
properly dismissed. Id. 198
The Plaintiffs make a variety of claims, but their challenges 199
to Rule XX fall into two basic groups. First, they claim that the 200
rule is invalid on its face as an impermissible restriction of the 201
First Amendment freedoms of the individuals and organizations that 202
are parties to this suit. This first type of claim encompasses 203
challenges to both of the substantive changes the LSC has made in 204
Rule XX: the new, more specific indigence requirements as well as 205

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the restriction on student representation in the role of an 206
attorney of any group or individual whose repreentation has been 207
solicited by any person associated with the clinic. 208
The Plaintiffs’ second general claim is that regardless of 209
whether Rule XX, on its face, restricts speech in violation of the 210
First Amendment, the rule was enacted in retaliation for the 211
clinics’ and their clients’ political speech and advocacy in the 212
Shintech matter, and is therefore an impermissible form of 213
viewpoint discrimination. The Plaintiffs’ claim that the LSC 214
amended Rule XX in direct response to pressure from business 215
interests who were opposed to the TELC’s environmental outreach and 216
advocacy. This second claim depends heavily on the motivation of 217
the LSC in enacting Rule XX. 218
In general, the LSC challenges the standing of all of the 219
Plaintiffs in this suit, and alleges that none of the parties have 220
suffered an injury in fact sufficient to justify this challenge to 221
Rule XX. In response to the first set of claims, the LSC points out 222
that the indigence requirements are not unlike those of several 223
other states and the federal government, that the income level that 224
disqualifies individuals from clinic representation is 225
significantly higher than the standard used by many states and the 226
federal Legal Services Corporation, and that since none of the 227
client organizations are entitled to pro bono representation in 228
civil cases there has been no actionable deprivation of any 229

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protected right. 230
The LSC responds to the Plaintiffs’ attack on the solicitation 231
restrictions by arguing that there is no right of non-lawyers to 232
represent others in litigation, that the litigation activities the 233
clinics engage in cannot be considered “speech” and that therefore 234
no party’s “speech” or other rights have been impacted. The LSC 235
responds to the viewpoint discrimination claims in much the same 236
way, arguing that Rule XX does not affect any party’s rights of 237
association or free speech. The LSC argues that although attorneys 238
may have speech and associational freedoms that protect pro bono 239
representation of clients for political reasons, lay persons and 240
law students have no such rights. Since Rule XX does not affect 241
the ability of any attorney to represent pro bono clients, the LSC 242
argues, the rule does not implicate any protected speech or 243
associational interests. 244
Thus, this case involves four issues: (1) whether the 245
Plaintiffs have standing; whether Plaintiffs have stated a claim 246
that Rule XX, on its face, violates protected freedoms of speech 247
and association by (2) the tightening of the indigence requirements 248
or by the (3) imposition of solicitation restrictions on student 249
representation in the role of an attorney; and (4) whether the 250
LSC’s promulgation of the rule constitutes actionable viewpoint 251
discrimination in this context. 252
253

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5Another individual party plaintiff below (Shearer) did not join
in this appeal; consequently, we disregard him.
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Standing 254
All of the Plaintiffs in this case fall into one of four 255
categories. The first group is comprised of community 256
organizations and individuals that have either been clients of the 257
student clinics or who are concerned that they will not be able to 258
obtain representation from the clinics in the future. The second 259
consists of law professors and clinical law instructors who oversee 260
or are otherwise involved in the student clinics. The third group 261
consists of three Tulane University law students, two third year 262
students who were “student practitioner” members of TELC during the 263
1998-99 academic year and one second year student who had been 264
accepted as a TELC member and “student practitioner” for the 1999- 265
2000 academic year. The fourth and last group consists of two 266
student organizations, the Tulane Environmental Law Society (an 267
organization of students that includes some of the students 268
enrolled in the Tulane Environmental Law Clinic) and the Tulane 269
Graduate and Professional Student Association.5 Neither Tulane 270
University nor TELC is a party to the suit; nor is any other 271
university or law clinic. 272
To satisfy the standing requirement, a party must establish 273
basic three elements. First, the plaintiff must have suffered an 274
injury in fact. An “injury in fact” is an invasion of a legally 275

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protected interest which is both (a) concrete and particularized, 276
and (b) actual or imminent and not conjectural or hypothetical. 277
Lujan v. Defenders of Wildlife, 112 S.Ct. 2130, 2136 (1992). 278
Second, there must be a causal connection between the injury and 279
the conduct complained of–in other words, the injury must be 280
traceable to the defendant and not the result of the independent 281
action of a third party. Id. Third, the injury must be 282
redressible; it must be likely, as opposed to merely speculative, 283
that a favorable decision will redress the plaintiff’s injury. Id. 284
The party invoking federal jurisdiction bears the burden of 285
establishing these elements, but “[a]t the pleading stage, general 286
factual allegations of injury resulting from the defendant’s 287
conduct may suffice, for on a motion to dismiss we ‘presum[e] that 288
general factual allegations embrace those specific facts that are 289
necessary to support the claim.’” Id. (quoting Lujan v. National 290
Wildlife Federation, 101 S.Ct. 3177, 3189 (1990)). 291
According to the complaint, Rule XX directly regulates the 292
operations of law school clinics in Louisiana and significantly 293
alters the ways in which those clinics can permissibly function. 294
Further, the complaint alleges that under the new rule, several of 295
the client organizations will hereafter be unable to obtain 296
representation from the clinics. Given the expansive and 297
deferential way in which we construe pleadings at this stage of a 298
suit, we find that Rule XX has enough of an impact on at least some 299

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of the Plaintiffs so as to constitute an injury in fact. At least 300
some of the Plaintiffs have standing to bring each type of claim 301
currently before the court. Accordingly, we next address the 302
merits of the Plaintiffs' claims. We begin with the Plaintiffs' 303
claim that the indigence and solicitation restrictions, on their 304
face, improperly infringe on the Plaintiffs' rights under the First 305
Amendment. 306
Indigence Requirements 307
Rule XX now requires that clinical student practitioners 308
represent only those individuals who are “indigent,” which is 309
defined as having an annual income that is less than 200% of the 310
current federal poverty guidelines as established by the Department 311
of Health and Human Services. Louisiana Supreme Court Rule XX, 312
section 4. As the commentary to Rule XX points out, applying the 313
current federal poverty standards the clinics are permitted to 314
represent an individual if his annual income is less than $16,480, 315
and may represent a family of four if the family’s annual income is 316
less than $33,340. Id. Contrary to the Plaintiffs’ assertions, 317
the rule does not require individuals to provide detailed financial 318
information to obtain representation–the rule simply states that 319
the clinics may only represent individuals who fall within the 320
income guidelines. The Plaintiffs claim that this aspect of the 321
rule subjects their clients to invasive discovery intended to 322
obtain embarrassing financial information. However, the LSC has 323

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always required that student practitioners represent only 324
“indigent” community organizations. See Louisiana Supreme Court 325
Rule XX, section 3 (1988). Also, the assertion that improper 326
discovery requests will dramatically increase is clearly based 327
almost entirely on speculation, and in any event can be adequately 328
addressed in any particular instance in which it does arise. This 329
part of the rule does not, on its face, restrict speech in any way 330
other than to limit clinical representation to clients who are 331
poor. 332
The indigence requirements alone implicate no speech 333
interests, and are simply subject to Equal Protection requirements. 334
Classifications based on wealth alone are not subject to strict 335
scrutiny. See San Antonio Independent School District v. 336
Rodriguez, 93 S.Ct. 1278, 1293-94 (1973). Strict scrutiny, 337
therefore, is inappropriate in a facial challenge of this part of 338
Rule XX. Under rational basis review, the indigence requirements 339
are valid. They are rationally related to one of the stated 340
purposes of Rule XX: providing representation to those who cannot 341
afford it for themselves. See Louisiana Supreme Court Rule XX, 342
section 1. Because the indigence requirements do not, on their 343
face, implicate any speech interests the district court was correct 344
to dismiss this part of the Plaintiffs’ challenge to Rule XX. 345
Solicitation Restrictions 346
The Plaintiffs argue that section 10 of Louisiana Supreme Court 347

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Rule XX is an impermissible restriction on their rights of free speech 348
and association protected by the First Amendment. While this may be a 349
closer question than the challenge to the indigence requirements, we 350
conclude that section 10 does not impermissibly restrict the Plaintiffs' 351
speech. 352
The First Amendment prohibits the government from enacting 353
solicitation restrictions that prevent attorneys from offering their 354
services pro bono to individuals or groups. For example, the Supreme 355
Court held in NAACP v. Button, 83 S.Ct. 328 (1963), that Virginia could 356
not prohibit the NAACP from advising individuals of their legal rights 357
and referring those individuals to lawyers. And, in In re Primus, 98 358
S.Ct. 1893 (1978), the Court held that a lawyer could not be 359
constitutionally subjected to discipline for informing members of the 360
public of their legal rights and offering free legal services on behalf 361
of the ACLU. The Plaintiffs cite both Button and Primus for the 362
proposition that all pro bono legal advocacy (even when conducted by 363
persons who are not licenced attorneys) is protected speech that cannot 364
be infringed without a compelling state interest. 365
A careful examination of those decisions reveals, however, 366
significant differences from the restrictions in the present case. For 367
example, in both Button and Primus, the solicitous speech was itself 368
prohibited. In Button, under Virginia's statute solicitation was a 369
misdemeanor, and the penalties for solicitation included imprisonment 370
for up to six months. Button, 83 S.Ct. at 334 n.7 (citing Va. Code § 371

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54.82 (1958)). Similarly, Edna Primus's letter soliciting a client on 372
behalf of the ACLU was, in and of itself, a violation of the South 373
Carolina bar's disciplinary rules. See Primus, 98 S.Ct. at 1898-1900. 374
In both cases, the solicitous speech itself was prohibited, and engaging 375
in such speech subjected the speaker to criminal or disciplinary 376
sanctions. 377
In contrast, nothing in Rule XX prohibits or prevents speech of any 378
kind. Rule XX does not prevent the clinics or their members from 379
engaging in outreach, or even from contacting particular clients, 380
advising them of their rights, and offering and then proceeding to 381
represent those clients. The rule only prohibits the non-lawyer student 382
members of the clinics from representing as attorneys any party the 383
clinic has so solicited. Since the rule does not directly regulate 384
speech and the ability of unlicensed students to practice law need not 385
exist at all, it is inaccurate to describe the restrictions in Rule XX 386
as impairing or prohibiting speech. No one is required to participate 387
in any of the clinical programs, and even if someone chooses to, they 388
are not punished for or prohibited from speaking. At most, Rule XX 389
indirectly discourages speech—by refusing the educational experience of 390
acting as an attorney in a particular matter to unlicensed student 391
practitioners in clinics whose members or employees engaged in 392
solicitation of that matter. 393
The impact of Rule XX’s section 10 (see note 4, supra) on the 394
educational experience is far from extreme. The students are not 395

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6 Indeed, the students are barred only from serving in an
attorney’s representative capacity by Rule XX, and could perform a wide
variety of legal related work or research, so long as it was reviewed
and any formal documents (such as pleadings, motions, agreements or the
like) were actually submitted by a licensed supervising attorney.
Nothing in Rule XX (or its challenged amendments) in any way
broadens the categories of conduct which constitute the practice of law
so as to require one engaging in same to either be a licensed attorney
or to come under the exemption for student practitioners provided by
Rule XX since 1971.
7 And, of course, the clinic's supervising attorneys could
continue to represent any client they wish, including clients who had
been solicited.
8 The Court in Primus did not hold that all solicitation
restrictions were invalid. Instead, the Court noted that in some
situations solicitation restrictions on practicing attorneys would be
permissible, so long as those restrictions were narrowly tailored and
did not impermissibly abridge associational freedoms. Primus, 98 S.Ct.
at 1908.
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prohibited from or restricted in working on clinic solicited cases as 396
paralegals, as legal (or factual) researchers, or as trial assistants,6
397
and they are not subject to discipline for contacting potential clients 398
and informing them of both their rights and that free legal 399
representation is available from the clinics. And, targeted 400
solicitation only implicates the students’ representation as attorneys 401
of that particular client—students would remain free to represent as an 402
attorney other clients who were not solicited by the clinic.7 These 403
limitations are a far cry from the criminal and disciplinary sanctions 404
invalidated by the Supreme Court in Button and Primus.8
405
The other major difference between this case and Button and Primus 406
is, of course, that the student practitioners are not licensed members 407
of the bar. The LSC has a heightened interest in overseeing the 408

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9 Indeed, the regulation of the practice of law in Louisiana is
uniquely within the power of the Louisiana courts: “The right to
practice law in the state courts is not a privilege or immunity of a
citizen of the United States. It is limited to those who are licensed
for that purpose.... The supreme court possesses the power, irrespective
of the legislature, to determine the qualifications of those who apply
for admission to practice law.” State v. Kaltenbach, 587 So.2d 779, 784
(La.App. 3 Cir. 1991) (citing State v. Rosborough, 94 So. 858 (1922)),
writ denied, 592 So.2d 1332 (1992).
10 On its face, section 10 of Rule XX is unquestionably viewpoint
neutral. We address below the Plaintiffs' claim that the rule was,
nevertheless, motivated by a desire to suppress a particular viewpoint.
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practice of law by non-attorneys in Louisiana. Indeed, the LSC need not 409
have ever allowed–and did not at all until relatively recently–non- 410
attorneys to participate in the actual practice of law in Louisiana. 411
The ability of students to represent clients as attorneys in legal 412
matters is entirely the relatively recent creation of the LSC and 413
continues to exist entirely at the LSC’s complete discretion.9 The 414
clinical programs are an educational benefit that the LSC has decided 415
to grant to Louisiana law students. 416
Rule XX's solicitation restrictions do not prohibit or punish 417
speech, they merely limit one aspect of the participation of unlicensed 418
students in clinical education programs–namely doing what only an 419
attorney can otherwise do–to representing as attorneys nonsolicited 420
clients. And, this limitation is entirely viewpoint neutral.10 Rule XX 421
is significantly different from the criminal or quasi-criminal 422
prohibitions of speech invalidated by the Supreme Court in Button and 423
Primus. We conclude that the district court was correct to subject 424
section 10 of Rule XX to rational basis review. The stated rationale 425

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for section 10 is to further “the Court's policy against solicitation 426
of legal clients generally, the ethical prohibitions against attorney 427
solicitation, and the Court's view that law students should not be 428
encouraged to engage in the solicitation of cases....” Louisiana 429
Supreme Court Rule XX section 10, Commentary. Section 10 is rationally 430
related to the LSC's goal of discouraging solicitation generally. The 431
nature of the solicitation provision, combined with the unique status 432
of the clinics' student practitioners, convince us that section 10 of 433
Rule XX is a constitutional exercise of the LSC's regulatory power. 434
By allowing unlicensed law students at clinics to practice law 435
under limited conditions, the LSC furthers two goals: providing legal 436
representation to poor Louisianians and providing educational 437
opportunities to Louisiana law students. See Louisiana Supreme Court 438
Rule XX section 1 (“As one means of providing assistance to clients 439
unable to pay for [legal] services ... the following rule is adopted.”). 440
In Legal Services Corporation v. Velazquez, 121 S.Ct. 1043, 1049-51 441
(2001), the Supreme Court invalidated a congressional funding 442
restriction that prohibited Legal Services Corporation attorneys from 443
participating in cases attempting to reform or challenge a state or 444
federal welfare system. The Court held that the restrictions 445
unconstitutionally regulated private expression in an arena in which 446
Congress had funded Legal Services Corporation attorneys to represent 447
indigent litigants. Velazquez, 121 S.Ct. at 1051-52. A major concern 448
of the Court was that the restrictions would do more than simply prevent 449

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representation in certain classes of cases; the restrictions, the Court 450
noted, would interfere with attorneys' advocacy of their clients by 451
preventing them from making certain arguments in particular cases: 452
"Restricting [Legal Services Corporation] attorneys in advising their 453
clients and in presenting arguments and analyses to the courts distorts 454
the legal system by altering the traditional role of the attorneys.... 455
By seeking to prohibit the analysis of certain legal issues and to 456
truncate presentation to the courts, the enactment under review 457
prohibits speech and expression upon which courts must depend for the 458
proper exercise of the judicial power." Id. at 1050-51. The fact that 459
a Legal Services Corporation lawyer could withdraw from a representation 460
if a problem arose did not, according to the Court, alleviate the 461
problems the rule caused. Id. at 1051. 462
In Velazquez, the Court noted that “Congress was not required to 463
fund a [Legal Services Corporation] attorney to represent indigent 464
clients; and when it did so, it was not required to fund the whole range 465
of legal representations or relationships. The [Corporation] and the 466
United States, however, in effect ask us to permit Congress to define 467
the scope of the litigation it funds to exclude certain vital theories 468
and ideas.” Velazquez, 121 S.Ct. at 1052. In contrast to the 469
regulations in Velazquez, Rule XX does not limit speech by the clinics' 470
members—any person associated with a clinic can engage in any sort of 471
outreach activity and can even solicit individual clients. Indeed, the 472
clinics are allowed to represent clients so solicited, with one 473

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-22-
caveat—the students, who are not lawyers, may not represent, as lawyers, 474
any client so solicited. Unlike the regulations struck down in 475
Velazquez, Rule XX imposes no restrictions on the kind of 476
representations the clinics can engage in or on the arguments that can 477
be made on behalf of a clinic client. Rule XX applies to all clinic 478
students equally, and is entirely viewpoint neutral. Nothing in Rule 479
XX implicates the proper functioning of the judicial system. None of 480
the special considerations present in Velazquez apply in the context of 481
this case. 482
The parties in Button and Primus were licenced attorneys, the 483
student clinical practitioners are not. Instead, they are the 484
beneficiaries of an educational program that the LSC has decided to 485
permit and which the LSC could end at will. Moreover, unlike the 486
criminal sanctions and disciplinary penalties involved in Button and 487
Primus, the restrictions imposed by Rule XX do not regulate or prohibit 488
speech directly. And, none of the special concerns mentioned by the 489
Court in Velazquez are implicated by Rule XX. The First Amendment does 490
not prohibit the LSC from imposing this viewpoint neutral limit on the 491
scope of unlicensed law students' educational use, as attorneys, of the 492
Louisiana courts. 493
Viewpoint Discrimination and Retaliation 494
Our holding that the solicitation requirements are facially 495
permissible does not end our inquiry. The Plaintiffs also claim that 496
the enactment of Rule XX constitutes an unconstitutional attempt by the 497

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Court to suppress political speech it has deemed undesirable. 498
Specifically, the Plaintiffs allege that the Governor and various 499
business interests pressured the Court into enacting Rule XX because of 500
the success of the clinics and community organizations in their attempts 501
to resist the construction of chemical plants in their communities. The 502
Plaintiffs argue that even if Rule XX is an otherwise permissible 503
restriction, the Court's allegedly suppressive motivation in enacting 504
Rule XX transforms the rule into an unconstitutional action. Since the 505
rule is facially viewpoint neutral and is not otherwise constitutionally 506
objectionable, this claim depends entirely on the effect the Court's 507
alleged motivation has on the constitutionality of Rule XX. 508
Although the jurisprudence in this area is less than clear, there 509
is some support for the Plaintiffs' contentions that the motivation of 510
a state actor can transform an otherwise permissible action into a 511
violation of the First Amendment. The Supreme Court has held that the 512
motivation of a legislature or other state actor can be the primary 513
factor in the constitutional analysis of state action in other areas of 514
First Amendment law, such as cases involving the Establishment Clause 515
or the termination of public employees because of protected speech. 516
See, e.g., Edwards v. Aguillard, 107 S.Ct. 2573 (1987) (striking down 517
a state statute requiring equal time for “creation-science” based on the 518
motivation of the legislature as indicated in the statute's legislative 519
history); Perry v. Sindermann, 92 S.Ct. 2694, 2698 (1972)(finding a suit 520
by a junior college professor whose contract had not been renewed, 521

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allegedly because of the professor's public criticism of the Board of 522
Regents, to present a “bona fide constitutional claim”). 523
In Cornelius v. NAACP Legal Defense and Education Fund, 105 S.Ct. 524
3439 (1985), the Supreme Court upheld as against a facial challenge an 525
executive order which limited participation in a charity drive among 526
federal employees (the “CFC”) to organizations that provided direct 527
health and welfare services to individuals or their families. The order 528
excluded legal defense and political advocacy groups. The district 529
court and the court of appeals had sustained the facial challenge, but 530
had not addressed the argument of the plaintiffs (respondents), the 531
NAACP Legal Defense & Education Fund and other legal defense funds, that 532
they were excluded from the CFC because the government disagreed with 533
their viewpoints. The Supreme Court reversed the decisions of the lower 534
courts facially invalidating the order. The court went on to state, 535
however: 536
“While we accept the validity and reasonableness of the 537
justifications offered by petitioner for excluding advocacy 538
groups from the CFC, those justifications cannot save an 539
exclusion that is in fact based on the desire to suppress a 540
particular point of view.” 541
. . . . 542
543
“. . . the purported concern to avoid controversy excited by 544
particular groups may conceal a bias against the viewpoint 545
advanced by the excluded speakers. . . .Organizations that 546
do not provide direct health and welfare services, such as 547
the World Wildlife Fund, the Wilderness Society, and the 548
United States Olympic Committee, have been permitted to 549
participate in the CFC. . . .the issue whether the Government 550
excluded respondents because it disagreed with their 551
viewpoints was neither decided below nor fully briefed before 552
this Court. We decline to decide in the first instance 553
whether the exclusion of respondents was impermissibly 554

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11 Nor do Plaintiffs argue that Rule XX creates any kind of forum
for speech.
-25-
motivated by a desire to suppress a particular point of view. 555
Respondents are free to pursue this contention on remand.” 556
Id. at 3454. 557
558
This language in Cornelius provides the Plaintiffs with some 559
support for their claim, but is not controlling in the present context. 560
Cornelius involved a rule which actually prevented certain groups from 561
speaking. The executive order in Cornelius was viewpoint neutral, but 562
it did exclude speakers from a nonpublic forum on the basis of both 563
their identity and the content of their speech. Id. at 3451. Those 564
speakers were shut out of a forum of which they might otherwise have 565
availed themselves, and in that way the order directly regulated speech 566
within that forum. Other speakers, such as the Wilderness Society, were 567
not excluded. Rule XX, in contrast, does not create a forum for 568
speech,11 does not exclude any speaker from any opportunity to speak, and 569
does not in any way prohibit or punish speech. Nor does Rule XX in any 570
way distinguish between speakers on the basis of the content of their 571
message. There is no “picking and choosing” here. Instead, the 572
Plaintiffs allege, the rule makes it somewhat more difficult to obtain 573
and to provide free legal services. While Cornelius does indicate that 574
an individual or group cannot be excluded from even a nonpublic forum 575
on the basis of viewpoint, we do not agree with the Plaintiffs that the 576
case requires us to examine the motivation underlying every governmental 577
decision for viewpoint neutrality. 578

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Additionally, the Plaintiffs' assertion that Cornelius stands for 579
the proposition that the motivation or purpose of a state actor can turn 580
any state action into an unconstitutional suppression of speech or 581
viewpoint is belied by the Court's decision in Rust v. Sullivan, 111 582
S.Ct. 1759 (1991). In Rust, the Supreme Court upheld Department of 583
Health and Human Services regulations that attached several conditions 584
on the receipt of federal funds for Title X projects. Among the 585
regulations were requirements that Title X projects refrain from 586
providing counseling concerning abortion as a method of family planning, 587
and programs that received Title X money were expressly prohibited from 588
referring a pregnant woman to an abortion provider, even upon request. 589
Rust, 111 S.Ct. at 1765 (citing 42 C.F.R. § 59.8(a)-(b) (1989)). The 590
Supreme Court held that the government was entitled to “refus[e] to fund 591
activities, including speech, which are specifically excluded from the 592
scope of the project funded.” Id. at 1773. The restrictions on speech 593
upheld in Rust explicitly prohibited the expression of a particular 594
viewpoint by program participants. In later cases, the Court has 595
limited the holding of Rust to occasions in which the government itself 596
is the speaker, or to “instances, like Rust, in which the government 597
'used private speakers to transmit information pertaining to its own 598
program.'” Velazquez, 121 S.Ct. at 1048 (quoting Rosenberger v. Rector 599
and Visitors of Univ. of Va., 115 S.Ct. 2510, 2519 (1995)). 600
There are differences between Rust and the present case. The LSC 601
is not itself a speaker–there is no government message that the clinics 602

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are relaying to their clients. And, Rule XX does not clearly qualify 603
as an attempt by the LSC to use private speakers to transmit information 604
pertaining to its own program. On the other hand, the LSC need not have 605
allowed any unlicensed student to serve in an attorney representative 606
capacity. The Court has chosen to allow the unlicensed student clinic 607
members to engage in the practice of law in Louisiana under certain 608
conditions. Although the court is not funding the clinics, the LSC is 609
supporting those clinics by its allowance of unlicensed students' 610
representation in the role of attorneys of clinic clients—an allowance 611
that the Court was under no obligation whatsoever to grant. 612
The analogy between Rust and the present case is an imperfect one, 613
but we think that Rust, while not controlling, informs our current 614
decision. The fact that the state decides to fund or support a program 615
does not give the government carte blanche to restrict the rights of 616
program participants. See Velazquez, 121 S.Ct. at 1049-50; Rust, 111 617
S.C. at 1776. But, at the same time, the LSC must be able to define the 618
scope of the law practice that unlicensed students undertake as part of 619
the clinical programs. We accordingly turn to an examination of the 620
effects of Rule XX and the alleged motivation of the LSC in its 621
enactment. The issue here is whether the Plaintiffs' allegations of 622
suppressive purpose, if true, would render Rule XX unconstitutional. 623
The Plaintiffs have alleged facts that may arguably support their 624
claim that the LSC reacted to pressure from the Governor and business 625
interests who bore the TELC significant animus. But the Plaintiffs' 626

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-28-
allegations of improper purpose, while extensive, do not focus on the 627
LSC. Although the Plaintiffs have certainly alleged animus on the part 628
of the Governor and various business groups, there is no express 629
allegation, nor do the facts alleged tend to suggest, that the LSC 630
itself bore any particular ill will towards any of the Plaintiffs. 631
Instead, the complaint in essence alleges that the LSC gave in to 632
pressure from others to restrict the activities of the student clinics. 633
The Plaintiffs allege that Rule XX was enacted to silence the TELC, but 634
the rule is of wholly general and prospective application–it applies to 635
all student legal clinics in Louisiana, not just TELC. Plaintiffs can 636
be understood to have asserted that the LSC ultimately bore some 637
character of ill will towards the TELC, at least on account of its 638
activities having generated unwanted political pressure on the LSC, and 639
that the LSC accordingly desired to defuse the political pressure, and 640
to diminish the likelihood of the recurrence of similar activities in 641
the future, by enacting the challenged amendments to Rule XX. Such an 642
alleged motivation on the part of the LSC does not, however, transform 643
Rule XX into an unconstitutional state action. 644
The fundamental purpose behind the First Amendment is to promote 645
and protect the free expression of ideas, unfettered by government 646
intrusion. We are convinced, however, that Rule XX will produce no 647
legally significant chilling effect on the expressive speech of any of 648
the Plaintiffs in this case. Rule XX does in effect impose some 649
restrictions on clinic activities, and, according to the complaint, the 650

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12 Nor does Rule XX impermissibly interfere with the content of
the private speech promoted as in Velazquez.
-29-
solicitation restrictions and the new, more strict indigence 651
requirements will result in a decrease in the availability of clinical 652
representation for some of the Plaintiffs. Some of the client 653
organizations in this case may indeed find it somewhat more difficult 654
to qualify for clinic representation in the wake of Rule XX, and the 655
clinics themselves will either be forced to change their educational 656
model or to refrain from soliciting particular clients. But, even this 657
minimal impact on the clinics and the client organizations is 658
“suppressive” only in comparison to the earlier version of Rule XX. 659
This is a crucial distinction. We conclude that a refusal to promote 660
private speech is not on a par with a regulation that prohibits or 661
punishes speech, or which excludes a speaker from a public or nonpublic 662
forum.12 Rather than stamping out or suppressing private speech, the 663
LSC's action has reduced the availability of support for such speech, 664
and the LSC–the highest judicial body in Louisiana exercising its 665
undisputed power and responsibility–has reduced this support by an 666
across-the-board, wholly prospective and viewpoint neutral general rule. 667
We are convinced that the new version of Rule XX will not silence any 668
group or individual's speech except to the extent that it ceases to 669
support private speech. The United States Constitution does not require 670
the LSC to continue its support for the clinical education programs 671
until its motives are shown to be pure. The LSC need not have ever 672

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13 At oral argument, the Plaintiffs asserted that even a complete
refusal to allow unlicensed students to practice law in Louisiana could
be considered a violation of the First Amendment if the change was
motivated by a desire to suppress political speech. We do not agree
that the First Amendment requires the LSC to continue, in perpetuity,
an optional program that allegedly benefits a particular political
viewpoint once that program has begun.
-30-
allowed unlicensed students to practice law in Louisiana, and indeed did 673
not do so until 1971, and that Court can end the program at any time, 674
and for any reason.13 The motivation of the LSC, in this limited 675
context, is irrelevant. As the Supreme Court stated in Rust, “[t]his 676
is not a case of the Government 'suppressing a dangerous idea,' but of 677
a prohibition on a project grantee or its employees from engaging in 678
activities outside of the project's scope.” Rust, 111 S.Ct. at 1772-73. 679
The LSC's amendment of Rule XX does not, under these circumstances, 680
constitute impermissible viewpoint discrimination in violation of the 681
First Amendment. 682
Conclusion 683
For the foregoing reasons, the judgment of the district court 684
dismissing the action is 685
AFFIRMED.

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